Citation NR: 9617956
Decision Date: 06/25/96 Archive Date: 07/08/96
DOCKET NO. 94-37 601 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon
THE ISSUE
Entitlement to an increased rating for a bilateral knee
disorder, currently evaluated as 20 percent disabling for
each knee.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
David T. Cherry, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1976 to May
1979.
REMAND
The veteran contends that his bilateral knee disorder is
severe enough to warrant a higher rating.
On a June 1992 VA orthopedic examination, the veteran
complained of persistent, chronic bilateral knee pain and he
also indicated that he has difficulty with flexion and
extension and has had two episodes of gout in his knees. The
bilateral knee joints were very painful on palpation. There
was a moderate degree of swelling medially and laterally in
both knees. There was no anterior or posterior subluxation
in either knee. There was some lateral instability and a
lesser degree of medial instability in the right knee. There
was small degree of medial instability and lateral
instability in the left knee. The veteran was able to extend
fully, but it was very painful. He had flexion to 140
degrees bilaterally, but it was also painful. It was noted
that the veteran became diaphoretic during the range of
motion testing. Osteoarthritis/degenerative joint disease of
the knees bilaterally was diagnosed.
VA medical notes from February 1993 reveal that the veteran’s
knee pain was stable. In May 1993, it was noted that there
was a slow increase in the knee pain and that the veteran was
only able to walk 100 yards before having to rest his knees.
It was also indicated that there was marked crepitus and
possibly a small effusion on the left. In September 1993, it
was noted that the veteran could only walk 1 or 2 blocks
without stopping and that he could only stand for 15 minutes.
He also could only carry 25 pounds. Continued, severe knee
pain was diagnosed. In January 1994, it was noted that the
veteran had no gout, but that he had a slow increase in
bilateral mechanical knee pain. It was indicated that he can
only walk 100 yards without pain.
The Board notes that the RO received a record of a
radiographic evaluation of the veteran’s knees obtained by R.
Cook, M.D., in May 1994. The interpretation was of advanced
post-traumatic arthritic changes involving virtually all
compartments
bilaterally. No other records were received. However, it is
likely that additional clinical records are available that
the Board believes are necessary to provide a record upon
which an informed determination of the matter could be made.
Robinette v. Brown, 8 Vet.App. 69 (1995).
Since the time of the examinations and rating actions on this
record, the Court has held that, when a diagnostic code
provides for compensation based solely upon limitation of
motion, 38 C.F.R. §§ 4.40 and 4.45 (1995) must also be
considered and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain on use or due to flare-ups.
Further, a rating may not merely rely on limitation of motion
in a rating code as subsuming 38 C.F.R. §§ 4.40 and 4.45
evaluative criteria that may provide an independent basis for
an increased rating. DeLuca v. Brown, 8 Vet.App. 202, 206
(1995). The extent of functional limitation due to the
service-connected bilateral knee disorder is not evident.
Accordingly, this case is REMANDED for the following:
1. The RO should ask the veteran to identify
the names, addresses, and approximate dates
of treatment for all health care providers
who may possess additional records pertinent
to his claim. With any necessary
authorization from the veteran, the RO should
obtain copies of those treatment records
identified by the veteran which were not
previously secured.
2. The RO should arrange for a VA
examination by an orthopedist to determine
the nature and severity of the veteran’s
bilateral knee disorder. The claims folder
and a copy of this remand must be made
available to the physician for review in
conjunction with the examination. All
necessary tests should be performed. The
examiner should record pertinent medical
complaints, symptoms, and clinical findings,
and comment on the functional limitations, if
any, caused by the veteran’s service-
connected disability in light of 38 C.F.R.
§§ 4.40 and 4.45. It is requested that the
examiner provide explicit responses to the
following questions:
(a) Does the service-connected bilateral
knee disability cause weakened movement,
excess fatigability, and incoordination, and
if so, what is the effect of these
manifestations on the ability of the veteran
to perform average employment in civil
occupations? If the severity of these
manifestations cannot be quantified, the
examiner should so indicate.
(b) With respect to the subjective
complaints of pain, the examiner should to
specifically comment whether pain is visibly
manifested upon palpation and movement and
whether there are any other objective
manifestation that would demonstrate disuse
or functional impairment due to pain
attributable to the service-connected
disability.
(c) How long can the veteran walk and stand
without pain and how much weight can he
carry.
3. Thereafter, the case should be
reviewed by the RO. Consideration should
be accorded to whether 38 C.F.R. §§ 4.40
and 4.45 apply, and if so, whether they
provide a basis for a change in the
rating.
If any benefit sought remains denied, the RO should issue an
appropriate supplemental statement of the case. The
appellant and his representative should be provided the
applicable time to respond. Thereafter, the case should be
returned to the Board for further appellate consideration, if
otherwise in order. In taking this
action, the Board implies no conclusion, either legal or
factual, as to the ultimate outcome warranted. No action is
required of the veteran until he is notified.
MARK J. SWIATEK
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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